BVA9500741 DOCKET NO. 92-21 597 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for pulmonary tuberculosis. ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The appellant had active service from December 1941 to July 1942 and from March 1945 to January 1946. He was a prisoner of war of the Japanese Government from April 1942 to July 1942. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1992 by the Department of Veterans Affairs (VA) Manila, Philippines, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that new and material evidence sufficient to reopen his claim of entitlement to service connection for pulmonary tuberculosis has been submitted. He maintains that this new evidence demonstrates that he contracted pulmonary tuberculosis during active service. Therefore, he requests a favorable determination by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for pulmonary tuberculosis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. In a July 1954 rating decision, the RO determined that the appellant was not entitled to service connection for pulmonary tuberculosis. The appellant did not appeal that determination. 3. The additional evidence associated with the claims file subsequent to the July 1954 rating decision is cumulative and does not bear directly on whether pulmonary tuberculosis was incurred in or aggravated by active service or manifested within three years following the appellant's separation from service. CONCLUSIONS OF LAW 1. The July 1954 rating decision that determined that the appellant was not entitled to service connection for pulmonary tuberculosis is final. Veterans Regulation No. 2(a), pt. II, par. III; effective January 25, 1936, to December 31, 1957. 2. The evidence received since the RO denied entitlement to service connection for pulmonary tuberculosis is not new and material and the appellant's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for pulmonary tuberculosis was denied in a July 1954 rating decision. The evidence of record at that time consisted of the service medical records; a February 1954 statement from Aquilino G. Canda, M.D.; an April 1954 statement from Simeon P. Rivera; an April 1954 statement from Miguel Puyat; an April 1954 statement from Raymundo C. Rivera; and an April 1954 affidavit from Cecilio G. Cruz, M.D. The service medical records indicate that the appellant underwent a fluoroscopy in October 1945 which revealed that he had a healthy chest. The service medical records also contain two Affidavits for Philippine Army Personnel that the appellant signed in May and November 1945. These documents do not indicate that the appellant incurred any wounds or illnesses during service. The February 1954 statement from Dr. Canda reveals that the appellant underwent a chest x-ray which showed infiltration of the first and third anterior interspace of the right lateral lung field, an enlarged hilar shadow on both sides, and some calcific spots on both hilar regions. Dr. Canda's interpretations were that the x-ray findings were compatible with minimal pulmonary tuberculosis on the right and that the calcific spots on both hilars may have been due to a childhood infection. The April 1954 statements from Simeon P. Rivera, Miguel Puyat, and Raymundo C. Rivera indicate that the appellant was extremely sick in July and August 1942 and that he had been disabled and unable to work since that time. The April 1954 affidavit from Dr. Cruz notes that he had treated the appellant for malaria and dysentery for a number of months beginning in July 1942. The appellant did not appeal following prompt notice of the July 1954 rating decision. Under legal criteria in effect at the time, the appellant had a period of one year from the date of notice of the result of the initial determination for the filing of an application for review on appeal. Since he did not appeal, that determination became final and is not subject to revision on the same factual basis. In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If it is determined that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). The evidence that has been associated with the claims file since the July 1954 rating decision consists of: (1) February 1948 medical records from Dr. Vicente G. Lopez; (2) a November 1952 laboratory request from the Bureau of Hospitals; (3) a March 1954 joint affidavit from Ruben M. Sarmiento and Amos M. De Leon; (4) an August 1954 affidavit from Dr. Cruz; (5) a September 1954 medical record from the Manila Health Department; (6) a September 1955 x-ray interpretation report by H. Zialcita, M.D.; (7) a September 1955 fluoroscopy report from the Philippine Tuberculosis Society; (8) a September 1955 medical record from the Public Health Laboratory; (9) an April 1956 affidavit from Dr. Lopez; (10) an April 1956 affidavit from Dr. Cruz; (11) a September 1963 notarized statement from the appellant; (12) a September 1963 notarized statement from Jose V. Zabat, M.D.; (13) a February 1964 medical record from the Philippine National Red Cross; (14) a March 1964 fluoroscopy report from the Philippine Tuberculosis Society; (15) a January 1965 certification from the Veterans Memorial Hospital; (16) a September 1965 fluoroscopy report from the Philippine Tuberculosis Society; (17) a January 1974 clearance sheet from the Veterans Memorial Hospital; (18) an August 1991 fluoroscopy report from the Philippine Tuberculosis Society; (19) the report of a VA Prisoner of War (POW) examination conducted from September to December 1991; (20) a September 1991 clearance sheet from the Veterans Memorial Hospital; and (21) a December 1994 reference slip from the Veterans Memorial Medical Center. Items (1), (2), (5), (13), (15), and (18) contain diagnoses of pulmonary tuberculosis that were not confirmed by acceptable clinical, x-ray, or laboratory studies or by findings of active tuberculosis based upon acceptable hospital observation or treatment. See 38 C.F.R. § 3.374(c) (1993). Therefore, these items do not constitute "new" evidence as they are merely cumulative and redundant of the unconfirmed diagnosis indicated in Dr. Canda's February 1954 statement which was of record prior to the RO's July 1954 rating decision. Items (7), (14), (16), and (19) indicate the presence of pulmonary infiltrations, suspicious densities, or hazy apices. These items likewise are not "new" as they are cumulative and redundant of the information contained in Dr. Canda's February 1954 statement that, as previously mentioned, was considered by the RO in its July 1954 rating decision. In item (3), Messrs. Sarmiento and De Leon reveal that the appellant was suffering from malaria and dysentery at the time he was released from a Japanese prisoner of war camp in July 1942. This item is not "new" as it is cumulative and redundant of not only the April 1954 statements from Simeon Rivera, Miguel Puyat, and Raymundo Rivera but also of Dr. Cruz's April 1954 affidavit, all of which were of record prior to the RO's July 1954 rating decision. Even if item (3) was "new," it would not be "material" because it does not address pulmonary tuberculosis, which is the subject of this appeal. Items (4), (9), (10), and (12) reveal that the appellant was treated for pulmonary tuberculosis by three different doctors in the 1940's and 1950's. These diagnoses, however, were not confirmed by acceptable clinical, x-ray, or laboratory studies or by findings of active tuberculosis based upon acceptable hospital observation or treatment. See 38 C.F.R. § 3.374(c). Consequently, these items do not constitute "new" evidence because they are merely cumulative and redundant of the diagnosis contained in Dr. Canda's February 1954 statement that was of record prior to the RO's July 1954 rating decision. Item (6) shows that the x-ray the appellant submitted to the RO in September 1955 in order to substantiate his claim for service connection for pulmonary tuberculosis, was not of diagnostic quality. Item (8) demonstrates that a sputum specimen was negative for acid fast bacilli. Both of these items are "new" because they were not previously of record. They are not, however, "material" as they do not lead to a reasonable possibility that, when viewed in the context of all the evidence of record, the outcome of the case would change, because they do not indicate that the appellant had pulmonary tuberculosis. In item (11), the appellant contends that he developed pulmonary tuberculosis in February 1942 when he was exposed to hunger and disease during World War II. The appellant, however, cannot meet his initial burden of submitting "new and material evidence" by relying upon his own opinion as to medical matters. Moray v. Brown, 5 Vet.App. 211, 214 (1993). Items (17) and (20) indicate that the appellant received clearance while at the Veterans Memorial Hospital. These items are "new" in that they were not previously of record. Items (17) and (20), however, are not "material" because they are not relative and probative of the issue at hand as there is no indication that they relate to pulmonary tuberculosis. In August 1994, the appellant's case was remanded to the RO for the conduction of further development. Specifically, the RO requested treatment records from the Veterans Memorial Medical Center (VMMC) for the periods during which the appellant claimed to have received treatment from that facility. As a result of the RO's efforts, item (21) was obtained from the VMMC which indicates that there were no records on file regarding the appellant. Item (21) does not constitute "new" evidence as it does not establish some element to the appellant's claim that was missing when the July 1954 rating decision was made. Accordingly, the Board finds that the necessary evidentiary requirements have not been met as new and material evidence sufficient to reopen the appellant's claim of entitlement to service connection for pulmonary tuberculosis has not been submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for pulmonary tuberculosis, the claim is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.